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Court of Criminal Appeal 4 October 2017

Sivaraja v R; Sivathas v R

[2017] NSWCCA 236

Assault & violence
CRIME CONVICTION APPEAL S 33(1)(A) CRIMES ACT 1900 DEFENCE TO JURY GROUP ATTACK NO EVIDENCE FROM ANY OF FIVE ACCUSED

Citation: Sivaraja v R; Sivathas v R [2017] NSWCCA 236
Court: Court of Criminal Appeal
Date: 4 October 2017
Judge(s): Meagher JA; R A Hulme J; Beech-Jones J

Background

Two appellants were convicted in the District Court of wounding with intent to cause grievous bodily harm, contrary to s 33(1)(a) of the Crimes Act 1900 (NSW), following a group attack on a man outside his home unit at Pendle Hill in the early hours of 20 April 2013. The alleged victim was a small Sri Lankan refugee on a bridging visa. The incident arose from an altercation at a birthday party, which escalated through telephone exchanges and culminated in five men, including the appellants, driving to the victim's home.

The victim gave evidence that five men attacked him with a cricket bat, a knife, and an iron rod. A second resident of the unit came outside during the attack and was briefly grabbed by one of the accused. Each accused was charged with five counts arising from the same night. The jury convicted all five accused on Count 3 (the wounding) and Count 4 (assault with weapon in company), but acquitted on the remaining counts.

Both appellants were sentenced to three years imprisonment with a non-parole period of two years. They sought leave to appeal against conviction, contending that the trial judge should have directed the jury on self-defence and that the verdict was unreasonable.

Legal Issues

  • Whether the trial judge erred by declining to leave self-defence to the jury
  • Whether the verdict of guilty on Count 3 (wounding with intent to cause grievous bodily harm) was unreasonable or could not be supported by the evidence, having particular regard to the mental element of the offence
  • Whether, if the conviction on Count 3 were quashed, a lesser verdict should be substituted under s 7(2) of the Criminal Appeal Act 1912 (NSW)

Decision

Ground 1: Self-defence

Self-defence under ss 418 and 419 of the Crimes Act requires, first, that there be a reasonable possibility the accused believed their conduct was necessary to defend themselves and, second, that there be a reasonable possibility their response was objectively reasonable in the circumstances as they perceived them. Before the Crown bears the burden of disproving self-defence, the defence must be "raised" by evidence capable of supporting a reasonable doubt through legitimate reasoning, not mere speculation (at [122]-[123]).

The Court accepted that the evidence could support a finding that the victim left his home with a chopping board and possibly a knife, and that he was angry and intoxicated. However, the appellants and their companions had driven to the scene and crossed at least 15 metres across the road to confront the victim. They had the easiest possible means to avoid any confrontation: they could have stayed in the car or left the scene entirely. This excluded any reasonable possibility that they believed it was necessary to assault the victim with a weapon in order to defend themselves (at [143]-[144]). It was also pure speculation to theorise that the victim produced a knife during the confrontation in a way that caused the appellants to form a belief that self-defence was necessary, given no evidence supported that scenario (at [145]). The trial judge was correct to refuse to direct the jury on self-defence (at [146]).

Ground 2: Unreasonable verdict

The Court conducted its own independent assessment of the evidence as required. There were genuine difficulties with the victim's credibility: he had a blood alcohol reading of 0.15 at 5.50am (at [62]), he made inconsistent statements including conceding a lie about who struck him with chopping board pieces (at [54]), and his evidence required careful circumspection (at [176]). Ruban's evidence about a missing knife was of dubious reliability, as he had no direct knowledge of it and was relying on an assertion by another resident that the resident did not confirm (at [161]).

No metal pole was found at the scene or in the accused's vehicle, although a cricket bat was recovered from their car (at [106], [188]). The medical evidence showed three wounds that required suturing, some bruising and swelling, but the injuries were relatively minor in the circumstances. The attack involved five men against one small victim over a sustained period; if grievous bodily harm was truly intended, it was, as the Court observed, "somewhat remarkable" that it was not achieved (at [189]). There was no clear evidence as to the force with which the weapons were used, and the nature of the wounds was consistent with causes other than a metal pole. The Court concluded that the jury ought to have had a reasonable doubt about the intention element of the offence (at [190]).

Substituted verdict

The Court found it was open, to the point of certitude, that the jury had found each accused was a party to a joint criminal enterprise to use an offensive weapon with intent to commit assault whilst in company, contrary to s 33B(2) of the Crimes Act. This was the offence charged in Count 4, as an alternative to Count 3. The Court substituted a verdict of guilty on that lesser offence for each appellant (at [192]-[193]). The matter was remitted to the District Court for resentencing, as no submissions had been made on the appropriate sentence for the lesser offence (at [195]).

Orders Made

  • Leave to appeal against conviction granted
  • Appeal allowed
  • The verdict of guilty on Count 3 and the sentence imposed on 24 February 2017 set aside for each appellant
  • In lieu thereof, a verdict of guilty substituted for the offence under s 33B(2) of the Crimes Act 1900 (NSW): using an offensive weapon with intent to commit an indictable offence (assault) whilst in company
  • Proceedings listed for mention in the District Court at Parramatta on 12 October 2017

Key Takeaways

  • Self-defence is not raised by the evidence where accused persons travel to a scene, cross the road as a group while armed, and have the easiest possible means of withdrawal available to them. In such circumstances, the reasonable possibility that they believed assault was necessary for their own defence is excluded (at [143]-[144]).

  • Where no accused gives evidence, the question of whether self-defence is raised turns on whether the beliefs and perceptions a person in the accused's position could reasonably hold in the circumstances support a reasonable doubt through legitimate reasoning, not mere speculation (at [124]-[125], [145]).

  • The Court of Criminal Appeal confirmed the principle from Sharp v R that it is artificial to break up a rapidly unfolding violent incident into discrete components when assessing intent in a joint criminal enterprise; the enterprise's purpose is assessed across the whole event (at [118]-[119]).

  • A relatively minor pattern of injuries, sustained over a sustained attack by five men against one small victim while armed with weapons, can give rise to a reasonable doubt about whether the accused intended to cause grievous bodily harm, particularly where no metal weapon was found at the scene and the medical evidence was consistent with other causes (at [188]-[190]).

  • Where a conviction for a more serious offence is quashed on appeal for insufficient proof of the mental element, the Court of Criminal Appeal may substitute a verdict for a lesser included offence under s 7(2) of the Criminal Appeal Act 1912 (NSW) and remit for resentencing where no submissions on penalty for the lesser offence have been made (at [191]-[195]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) ss 33(1)(a), 33B(2), 418, 419, 428C
- Criminal Appeal Act 1912 (NSW) ss 5(1)(a) and (b), 6(1), 7(2), 12(2)
- Evidence Act 1995 (NSW) s 38

Cases
- Alhassan v R [2017] NSWCCA 73
- Braysich v The Queen [2011] HCA 14; 243 CLR 434
- Chen v R [2013] NSWCCA 116
- Colosimo v Director of Public Prosecutions (NSW) [2006] NSWCA 293
- Cuzman v R; Bucataru v R [2014] NSWCCA 222
- Elias v R [2006] NSWCCA 365
- Haoui v R [2008] NSWCCA 209; 188 A Crim R 331
- Hawi v R [2014] NSWCCA 83; 244 A Crim R 169
- Oblach v R [2005] NSWCCA 440; 65 NSWLR 75
- R v Katarzynski [2002] NSWSC 613
- R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82
- R v Murray (1987) 11 NSWLR 12
- R v Stokes & Difford (1990) 51 A Crim R 25
- Shamoun v R [2015] NSWCCA 246
- Sharp v R [2012] NSWCCA 134
- Spies v The Queen [2000] HCA 43; 201 CLR 603
- Swan v R [2016] NSWCCA 79
- The Queen v Baden-Clay [2016] HCA 35; 258 CLR 308
- Tonari v R [2013] NSWCCA 232; 237 A Crim R 490
- Viro v The Queen [1978] HCA 9; 141 CLR 88